1. Easement presentation SSSI Spatial Summit SSSI Spatial Summit Land Victoria 2011 September 2011 Renato Marasco & Helen Lymbouris Disclaimer The content of this Land Victoria presentation is provided for information purposes only. No claim is made as to the accuracy of its content. Under no circumstances will Land Victoria, its agents or employees be liable for the accuracy of the information contained in this presentation nor for the use or reliance placed on it. The information is provided on the basis that all persons accessing the presentation undertake responsibility for assessing the relevance and accuracy of its content. Land Victoria does not endorse any of the other information contained elsewhere in this website. Copyright Apart from fair dealing for the purposes of private study, research, criticism or review as permitted under the Copyright Act 1968, no part of this presentation may be reproduced, copied, transmitted in any form or by any means (electronic, mechanical or graphic) without the prior written permission of the State of Victoria. All requests and enquiries should be directed to Land Victoria.

2. Easements Topics covered Easements created under section 23 Subdivision Act 1988 Various examples Easements in Gross - Section 45 Transfer of Land Act 1958 examples of Electricity companies Water Authorities Gas Authorities Any Easements Notations Other Examples and Questions

3. Creation Variation or Removal of easements lodged as dealing not as a component of a plan of Subdivision. This section allows multiple processes and parties in one dealing. (creation, variation and removal and any combination of) The T.L.A. requires one dealing for one process. To use this section requires council direction (via a planning permit or planning scheme amendment) No consents are required not do we notify the dominant title. Remember that the applicant is the servient title Section 23 Subdivision Act 1988 easements

4. The plans must be certified by Council and in the case of a plan relating to easements it must clearly specify (by diagram or text) the easements being dealt with. The plan does not have to show any other easements affecting the servient land. A Section 23 component may be included as a purpose in a Plan of Subdivision. Section 23 Subdivision Act 1988 easements

5. Variation of dominant land (a) The land to benefit from a Section 98 Transfer of Land Act 1958 easement may not be varied either to become more limited than all of the lots in the plan in which the Section 98 easement was appropriated or to include land which was not the subject of the plan in which the easement was appropriated. eg: from All lots on this Plan to All lots on this Plan and Lot 1 on LP12345 (b) The dominant land of an easement created by grant or plan under the Subdivision Act 1988 may be varied to exclude land; eg: from Lot 1,2,3 on PS300 000 to Lot 2,3 on PS300 000 (c) The dominant land of an easement created by plan under the Subdivision Act 1988 may be varied to include additional land provided it is land which was on the plan in which the easement was created; eg:- from Lot 5 on PS300 000 to Lot 4 and 5 on PS300 000 Section 23 Subdivision Act 1988 easements

6. SME Variation of servient land (a) A variation could add to or subtract from the servient land. It is considered that as long as some part of the servient land remains subject to the easement it should be able to be varied to subtract land from it and/or add land to it. It would appear necessary that any addition be connected to the existing easement. (b) The location of the servient land when varied must have some connection with its location prior to its variation. If more than one lot is shown in the plan, all lots being owned by the same registered proprietor and being lots created on the same plan the connection may be in regard to one lot only e.g. variation of carriageway easement E-1 (see example following slide ) Section 23 Subdivision Act 1988 easements

7. Example of a Variation of an easement

8. EASEMENTS IN GROSS

9. Easements in Gross One of the essentials of an easement is that there must be both a dominant tenement and a servient tenement. Therefore there cannot, apart from in statute, be "an easement in gross" - ie an easement without a dominant tenement. However, certain statutes provide expressly that an authority can acquire an easement, provided that the right in question is not taken for the benefit of land of that authority. These rights are statutory easements in gross and may be registered as easements under the Transfer of Land Act or Subdivision Act, defining in full the intended meaning of such terms as "Powerline". Easements in Gross- Section 45 TLA

10. See Section 88 Electricity Industry Act 2000Electricity Industry Act 2000 The normal appropriation of an easement in favour of these bodies is for Powerline purposes. The full-intended meaning of that purpose being fully defined in the schedules to the relevant Acts. Easements in Gross Section 45 TLA Schedule for Electricity Industry Act

11. Easements in Gross Section 45 TLA Acceptable beneficiaries (Authorities / Companies) Acceptable electricity companies are empowered to take easement in gross for any purpose. To determine whether Beneficiaries for easements in Gross are acceptable, the following steps should be followed: Only Distribution, Generation and Transmission Companies are able to create easements in gross Note: - Retail companies don't have the ability to create easements in gross Distribution, Generation and Transmission Companies are located on pages 1 to 3 on the Essential Services Commission Website View the Essential Services Commission Website http://www.esc.vic.gov.au - Energy Licences Issued http://www.esc.vic.gov.au

12. Easements to Authorities Water Act 1989 Water Industry Act 1994 Gas Industry Act 2001

13. Recording "Any Easement" notations on new and existing Title Plans and new Subdivision Act Plans. Any Easement Implied under Acts Any Easement Encumbrances shown as "Implied under Acts" "Any easements implied under Act 3168" Any Easement Implied under Acts Any Easement Encumbrances shown as "Implied under Acts" "Any easements implied under Act 3168" "Any easements implied under section 212 of the Transfer of Land Act 1928" and "Any easements implied under section 98 of the Transfer of Land Act 1958" All equate to "The easements (if any) implied under Section 98 of the Transfer of Land Act 1958" and do not require further searching. If the title encumbrance notation is "Any easements affecting the same" that is when you need to undertake a “any easement search” ( back to an unencumbered title). Any Easements

14. Can an easement of carriageway be created over common property on a registered plan of subdivision in favour of land outside the plan? If so, how can this be done? Answer :- Yes! an easement of carriageway can be created using the means of Sec 45 of the TLA where both the servient and dominant titles will be supplied, the applicant will be the Owners Corporation and because its an easement of Carriageway the consent of council is required. Is there another way? Yes using the means of Sec 23 of the Subdivision Act to create an easement of carriageway in favour of land outside of the subdivision the servient title is required to be supplied ( the dominant title is not required). Easement questions

15. Can a joint application be made by both land owners to create a carriageway easement in favour of abutting lots on a proposed subdivision? No, there needs to be 2 applications, one for the Subdivision Plan and one for the sec 23 Subdivision Act Plan (creation of easement) both applications can be lodged at the same time Easement questions

16. Questions